You may feed the swans...
A recent case (published by the brilliant, open access Bailii web service) provides a good chance to remind everyone that village green legislation can apply to all sorts of open areas.
If an open area of land has been used by a significant proportion of people in a given neighbourhood for leisure purposes for 20 years, it can be protected by the Council as a town or village green. It is then an offence to build on that land or otherwise use it in a way that interferes with the leisure use. If leisure use was carried out with the permission of the landowner, it does not count.
As the case notes, all sorts of areas have been used in this way and therefore have been registered as village greens. They include quarries, hard standings, golf courses and school playgrounds.
This case relates to a working port, Mistley in Essex. It sounds bucolic. Those nearby who are in need of respite can apparently happily combine any or all of watercolour painting, wandering around (with or without dogs), catching crabs, or feeding swans.
More seriously, all of these activities were taking place whilst the port was being used as a place of business. That business use did nothing to displace the idea that these leisure activities were going on without permission (except in the case of feeding the swans).
The case also provides a reminder that the leisure use did not stop use of the area as a port. It would just stop any further or future use that prevented leisure use. Keeping a designated area of 'village green' as public open space could therefore mitigate the impact that the designation would otherwise have on a development scheme. It would appear that low impact use of the area by the landowner would also be permitted, if that did not impact on the leisure use.
It is also worth mentioning signage. Effective signage can be used to make it clear that leisure use is being expressly permitted on the owner's terms, potentially defeating a village green application. Presumably, there is a sign somewhere in Mistley saying "feel free to feed the swans"?
... the inspector appointed ... found that the land ...had been used as of right for lawful sports and pastimes by a significant number of local people. ... The main recreational activity which the inspector found to have been established was informal walking or wandering, with or without dogs, and not on a fixed route, and people often standing and having a chat with others in association with such wanderings. He also found that there had been other activities such as informal games and social activities; and also crabbing at the water's edge. In addition some people painted or drew, although that was a minor part of the overall activities. Although the inspector found that there had also been swan feeding, the judge decided that that activity took place with the permission of TWL; and so was excluded from consideration”
